by Fergal Mullins September-08-2020 in Healthcare Law
This article appeared in the Dublin Solicitors Bar Association magazine, The Parchment - Autumn 2020.
The recent High Court decision in the case of Brereton v The Governors of the National Maternity Hospital & Ors [2020] IEHC 172 (“Brereton”) provides up-to-date guidance on the courts’ interpretation of recent amendments made to Order 8, Rule 1 of the Rules of the Superior Courts1. The decision is of particular interest in relation to the courts’ interpretation of the necessity on the part of the Plaintiff to show “special circumstances” when seeking leave to extend time for service of a Personal Injury Summons (“Summons”).
1. Renewal of Summons
By way of background, a Summons must be served within 12 months from the date of issue, in accordance with Order 8 of the Rules of the Superior Courts. If the 12-month time frame expires before service has been effected, the Plaintiff may bring an application to the High Court seeking leave to extend time to renew the Summons.
In Brereton, the Plaintiff alleged medical negligence on the part of the Defendants prior to and during the birth of her child on 27 February 2016. The Summons was not served on the Defendants within the requisite 12-month period. The Plaintiff therefore made an application seeking leave to apply to renew the Summons, ten weeks after the Summons should have been served. Following the granting of the renewal application by Mr Justice Barr, the Defendants sought to appeal the decision.
2. Special Circumstances v Good Reason Test
On appeal, the matters in respect of which the recently established “special circumstances” test (as provided for by Order 8 Rule 1(4) of the RSC) apply were disputed by the parties. The Plaintiff asserted that the “special circumstances” test replaced the previous “good reason” test, meaning that a court now has to be satisfied that there are special circumstances to justify a renewal.
Conversely, the Defendant, citing the decision in Ellahi2, contended that the Plaintiff must satisfy a two part test, namely to show special circumstances justifying an extension of time to seek leave to renew the Summons but also to show “good reason” to justify the renewal of the Summons.
In delivering the High Court’s judgment, Ms Justice Hyland conceded that the wording of the new rule was ambiguous. However, she contended that the disagreement between the parties was somewhat academic as both parties acknowledged that the “special circumstances” test places a higher bar on the Plaintiff than the previous “good reason” test. Ultimately, Ms Justice Hyland endorsed the two-part process, following the above-mentioned Ellahi case, and applied the good reason test to the renewal of the Summons.
In so doing, however, the Court outlined that in this case, the special circumstances that justified the extension of time to bring the application for renewal were the same circumstances that justified a renewal of the Summons, regardless of whether the special circumstances or good reason test was applied.
3. Interpretation of the Special Circumstances Test
Ms Justice Hyland proceeded to examine the circumstances surrounding the Plaintiff’s failure to serve the Summons on time. She found that this arose due to inadvertence on the part of the Plaintiff’s solicitor, rather than the necessity to await further medical reports, as had been averred to by the Plaintiff’s solicitor.
In deciding whether or not “special circumstances” in the context of the aforementioned Order 8, Rule 1(4) did exist, justifying an extension of time to bring an application for renewal of the Summons, Ms Justice Hyland considered both the interests of justice between the parties as well as the prejudice to each party.
Justice Hyland noted that it was clearly intended to serve the Summons on time, as illustrated by the Plaintiff’s solicitor’s letter to the Defendants on 10 March 2019, 3 days before the expiry of the 12-month service period. Furthermore, the application for renewal was made 10 weeks after the period for service expired, which was considered to be “at the lesser end of the spectrum” compared to the cases of Chambers3and Roche4 which involved delays of 6 months and over 5 years respectively.
Ms Justice Hyland noted that the change of the applicable test to “special circumstances” would mean that much shorter periods of delay are likely to be treated as sufficient to justify a refusal to renew a Summons. It was also indicated that had the period of delay been longer by even a month or two she would have been inclined to alter her approach. Nonetheless, the Court held that a ten-week delay in the context of a 12-month period, was sufficient to find that the balance of justice favoured upholding the decision to renew the Summons.
4. Comment
The judgment serves as useful guidance not only on the applicable test but also in respect of the circumstances in which a renewal application is likely to be successful or not.
The judgment rebuffs the proposition that inadvertence on the part of a legal advisor cannot be a “good reason” or less still a “special circumstance” to justify an extension of time for renewal of a Summons.
The judgment also, however, suggests that each case must be assessed on its merits and factors such as the circumstances surrounding any inadvertence, the length of the delay in making the renewal application and the possibility of prejudice being caused to a Defendant warrant due consideration in considering any such application.
For more information, please contact Fergal Mullins fmullins@hayes-solicitors.ie.
1 Order 8 Rule 1 of the Rules of the Superior Courts as amended by S.I. 482 of 2018: Rules of the Superior Courts (Renewal of Summons) 2018.
2 Ellahi v. Governor of Midlands Prison [2019] IEHC 923
3 Chambers v Kenefick [2007] 3 IR 526
4 Roche v Clayton [1998] 1 IR 596
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About the Author
Fergal Mullins
Fergal Mullins is an associate solicitor in the Healthcare team at Hayes solicitors. He primarily advises clinical practitioners, hospitals and indemnity bodies on the defence of clinical negligence claims. Prior to joining Hayes, Fergal worked in a London firm in the area of clinical negligence, having trained and worked post qualification in a large Dublin firm in the same area.